City of Fort Smith v. Director, Division of Workforce Services; And Martin Bosco
704 S.W.3d 143
Ark. Ct. App.2024Background
- Martin Bosco, a longtime City of Fort Smith IT employee, was reassigned to a new position following an audit in which he answered questions against the wishes of a supervisor.
- Bosco was asked to return his City-issued cell phone, laptop, and identification/access cards; he wiped the phone (a common practice), returned his primary badge, but retained a secondary access card.
- Bosco briefly re-entered the IT building using the secondary card after hours to return the laptop and left both the card and laptop in his office, as he believed was proper.
- Bosco was terminated for alleged insubordination, dishonesty for not immediately returning all equipment, and unauthorized reentry to the building.
- The Division of Workforce Services denied Bosco's unemployment claim for misconduct, but the Arkansas Board of Review reversed, finding Bosco's testimony more credible.
- The City of Fort Smith appealed, arguing improper consideration of new evidence, errors regarding treatment of hearsay, and deference to oral testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Board considered new evidence | City claimed Board used post-hearing evidence not served on them | Bosco argued record was closed; no new evidence was relied on | Board did not rely on new/unauthorized evidence; affirmed |
| Treatment of hearsay evidence | City argued memo was not hearsay or, regardless, could be considered | Bosco maintained Board properly weighed evidence including hearsay | Board weighed documentary evidence and testimony; no error |
| Weight given to oral testimony | City claimed Board automatically favored Bosco's oral testimony | Bosco argued Board exercised discretion, assessing credibility | Board carefully weighed all evidence; found in Bosco's favor |
| Misconduct standard/justification | City claimed Bosco's actions were insubordinate, dishonest, and against City policy | Bosco argued actions were common practice, no knowing violation, and lack of clear rules | City did not meet burden to show willful misconduct; benefits affirmed |
Key Cases Cited
- Thomas v. Director, 2019 Ark. App. 468 (review standard for unemployment compensation misconduct)
- Brewer v. Everett and Leckenby Co., 3 Ark. App. 59 (procedure for consideration of new evidence by Board of Review)
- Brown Jordan v. Dukes, 269 Ark. 581 (due process issue regarding ex parte evidence in unemployment appeals)